Judge Dib Waldrip makes a fist during yesterday’s hearing. Photo: Mike Bennitt
Today, Monique’s legal team has to outdo that argument if her lawsuit is going to continue.
Yesterday, Marc Wiegand began his presentation of that case, detailing the kind of surveillance and harassment that Monique and her husband, Mark ‘Marty’ Rathbun, went through after 2009, when Marty began publicly criticizing Miscavige, his former boss. For years, the Rathbuns were followed, photographed, confronted, protested, and denounced on their porch and on the Internet. The Church of Scientology has admitted to paying for that extraordinary effort, involving a small army of attorneys, private investigators, videographers, and other operatives. But in its motion, the church is claiming that it’s Monique who is doing the harassing by filing her lawsuit. What the church was doing with its spying operation was simply sticking up for its religious beliefs and is protected free speech, Scientology argues. The church says Marty Rathbun picked a fight with Scientology by writing a critical blog and by conducting unsanctioned counseling at his home. Scientology sent private eyes, it argues, because it needed to protect its trademarks in a religious dispute that a civil court has no business getting involved in.
Around the country, anti-SLAPP laws were enacted to keep well-heeled bullies from suing their critics out of existence. That Scientology, one of the most legendary bullies in American law, would use an anti-SLAPP motion to protect itself from Monique Rathbun, a woman it surveilled and harassed for years, might seem astonishingly outrageous. Because, frankly, it is.
But those who were present on January 8 give Cedillo credit for making a strong case for the church’s motion. Will Wiegand and Monique’s other attorneys — Ray Jeffrey and Elliott Cappuccio — convince Judge Dib Waldrip to deny Scientology’s motion? We’ll see how well they do today, and the judge will have until February 18 to make a decision. [See update below. Ray Jeffrey says the hearing itself is supposed to wrap up by February 18 — by statute, anyway — and that Judge Waldrip would have another 30 days to make a decision.]
If he decides for Scientology, the lawsuit is over.
Yesterday, Monique’s attorney Ray Jeffrey managed to convince Judge Waldrip to allow Monique and Marty see the video evidence that Scientology turned over last week but designated “for attorney’s eyes only.” But Waldrip did not grant them any more time to sift through the massive amount of video, which may be important for their presentation today. We have to assume it was a late night last night as Monique’s team prepared for this hearing.
Please see our entry yesterday for an even more thorough background on this lawsuit, which was first filed in August. Today, we’ll have numerous people keeping an eye on things for us in the courtroom, including local journalist Nick Rogers, former Scientologist and photographer Mike Bennitt, and visiting from Los Angeles, Jeffrey Augustine (a/k/a J. Swift and OTVIIIisgrrr8!). New updates will show up below.
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Posted by Tony Ortega on February 4, 2014 at 07:00
E-mail your tips and story ideas to tonyo94@gmail.com or follow us on Twitter. We post behind-the-scenes updates at our Facebook author page. Here at the Bunker we try to have a post up every morning at 7 AM Eastern (Noon GMT), and on some days we post an afternoon story at around 2 PM. After every new story we send out an alert to our e-mail list and our FB page.
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9:22 am
Talked to Ray Jeffrey this morning. He tells me that Marc Wiegand and Leslie Hyman will be arguing against the anti-SLAPP motion today starting at 11 am Eastern.
But he thinks it’s likely that things won’t wrap up today. He explained that the arguing over anti-SLAPP can keep going all the way until February 18 or even longer, and Judge Waldrip will then have 30 more days to issue a decision once the hearing is completed.
Scientology’s attorneys have repeatedly brought up dates by which time things should be completed, but Judge Waldrip has questioned those readings of the statute. So this may take longer than we initially believed. Hey, it’s his court.
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2:19 pm
Just talked to Nick, who’s going back in after a lunch break.
He says Wiegand and Hyman spent the morning laying out all the personal harassment that the Rathbuns experienced, including being followed, photographed, and disrupted in their daily lives. Monique’s co-workers and family members were contacted.
These activities have nothing to do with the church’s free speech rights. They emphasized that the lawsuit is not about the right of the Squirrel Busters to protest or make films. It’s about the day to day surveillance that the Rathbuns had to endure.
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2:24 pm
Nick said that Leslie Hyman really seemed to score some points when she took on Scientology’s argument about trademarks.
Scientology says it has a right to surveil Marty Rathbun because it needs to protect its copyrights and trademarks, and when Marty was counseling outside the church, he was in violation of that.
But Leslie pointed out that if that were true, why didn’t the church sue Marty over trademark infringement? They didn’t do that when they had the chance, and the statute of limitations on that ran out and the church was still surveilling him.
Nick said it seemed like a very impressive argument.
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2:27 pm
From J. Swift on the morning’s proceedings: “Marc Wiegand is arguing that the Squirrel Busters did not engage in protected free speech. They rather engaged in intentional infliction of emotional distress and invasion of privacy while attempting to justify it as making a documentary.
“Wiegand showed a photo of the Squirrel Busters in the paddle boat in the canal behind the Rathbun home, and Lamont Jefferson visibly cringed.”
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3:05 pm
Just heard from Mike Rinder, who sent along this message. (He’s not in Texas at the hearing.)
I just learned that the SLAPP statute in Texas allows for an appeal, so now I understand why the church brought this clearly foolish motion. They know it will be denied and the case is stayed pending appeal. It is merely an attrition tactic.
I think Judge Waldrip will write another pretty lengthy opinion, knowing it will be appealed. His last one was written like an appellate opinion, I predict this one will be too. I was not aware that this was an element of the statute, and it suddenly made sense.
The church knows it won’t win this motion. But it will delay the Miscavige deposition and cost more time and money to fight what was a silly motion in the first place. But it’s only silly if you aren’t looking at it from Miscavige’s perspective.
Next they will file a motion to dismiss on First Amendment grounds that will make virtually the same arguments again.
This is how you game the system when you have unlimited funds. Pity we don’t have the same system here as in a lot of countries — loser pays the other side’s fees and costs. This case could end up with $ 20 million in attorney billable hours by the time it is over.
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5:08 pm
Nick out on a short recess. Some notes coming in a moment…
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5:25 pm
Nick tells us that Marc Wiegand and Leslie Hyman concluded their presentation, and Ricardo Cedillo was given his opportunity to present Scientology’s response. (That means we’re farther along today than Ray Jeffrey told us he thought we’d get to when we talked to him this morning.)
“Cedillo went over the same territory he’s gone over before,” Nick says. The Scientology attorney said that the church had the right to investigate Marty Rathbun because Rathbun was violating Scientology’s copyrights and trademarks. (Rathbun had left the church in 2004, and by 2009 was writing publicly about being an independent Scientologist, offering counseling services outside the church organization.)
Cedillo also said Monique’s lawsuit was really all about the Squirrel Buster protest, regardless of what they say.
(Wiegand and Hyman had said that Monique is not suing over the Squirrel Busters holding protests and filming, but about the constant surveillance and harassment that disrupted their lives for four solid years.)
Nick said that Cedillo also talked about the ten-minute video that was shown yesterday. It was made on May 4, 2010, and predated the Squirrel Busters by nearly a full year. But Cedillo now says that the 2010 video wasn’t part of an investigation of the Rathbuns, but part of another documentary — a documentary that the church was making about John Sweeney.
Who’s John Sweeney, asked Judge Waldrip.
Cedillo’s answer was so precious.
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5:32 pm
Asked by Waldrip who John Sweeney was, Nick says that Cedillo answered…
“He’s an avowed anti-Scientologist who works for a British media outlet.”
Oh, that’s a good one, Ricardo.
What strikes us is that Scientology has already admitted that it sent Monty Drake to try to find Rathbun in Texas in 2007. But now Cedillo wants the court to believe that it had sent private eyes and videographers to film the Rathbuns at their home in Ingleside on the Bay in 2010 because they were making a film about a BBC journalist? (Sweeney was in Florida and California for his 2007 film, “Scientology and Me,” but it’s our recollection that he flew Marty Rathbun and Mike Rinder over to London for his 2010 follow-up, “The Secrets of Scientology.” If Sweeney went to Texas for either of those films, please remind us, but it isn’t coming up in our memory banks.)
Anyway, Nick points out the most damaging line from the 10-minute video, as far as Cedillo’s story. When the person filming spots Monique, he’s heard to say, “Is that her?”
Yeah, a Sweeney documentary.
Anyway, Nick says that most of the afternoon has been taken up with detailed battles over case law.
“Cedillo laid out a very long, solid case. But so did Wiegand and Hyman,” Nick says. “It’s an interesting First Amendment argument all the way around.”
But Nick says he’s left with the question: If the Squirrel Busters was an exercise in free speech, what were they hoping to achieve? That hasn’t really been explained very well by Scientology.
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5:39 pm
Nick says that Cedillo took the time to give a detailed timeline of the entire operation against the Rathbuns. Judge Waldrip asked him, So everything on the timeline is about protecting trademarks?
Nick felt that Cedillo’s answer to that turned out to be unwise.
He said that Cedillo explained that the timeline reflected efforts by the church to find out what Marty Rathbun was doing, and to find out who was meeting with him and what they were up to.
Nick said it really came off looking bad. “It made the church look like Big Brother, keeping tabs on its members,” he says.
Another observation by Nick: During their presentation, Wiegand and Hyman were going through all of the things that Monique had put up with during years of being followed and interfered with. At one point, one of the Squirrel Busters called her a “bitch.”
Nick says it was clearly just an example that Monique’s team included to show the cumulative effect of what she went through. But Cedillo, for some reason, acted like the case turned on that utterance.
“Cedillo went on and on about free speech,” Nick said. Cedillo spent a lot of energy arguing that Scientology had the First Amendment right to call Monique Rathbun a bitch, but Nick says that Cedillo was acting like it was one of the causes of action in the suit, not just an example of what Monique had to put up with.
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5:42 pm
Nick says that the attorneys for Dave Lubow (Scientology’s chief private eye) and Ed Bryan (one of the Squirrel Busters) indicated that they also wanted to respond this afternoon.
We will be curious to see what they have to add to Cedillo’s arguments. We’ve thought of them as being largely along for the ride on this.
So now we wait for the final break. Thank you for your patience.
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6:35 pm
Just tweeted by John Sweeney: “In 2010 I did go to Texas to meet Marty, we were filmed and harassed by Church of #Scientology PIs.”
Also, heard from Nick — they’re out. Should get some updates in a few minutes.
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6:55 pm
J. Swift has an observation for us. He said that Leslie Hyman had a stunning moment near day’s end.
Scientology attorney Ricardo Cedillo had been arguing that because Marty and Monique Rathbun had been operating a business from their home — offering independent Scientology counseling and writing about it on Marty’s blog — then they had no expectation of privacy. This was another justification for the years of surveillance they experienced.
But Leslie Hyman said to Judge Waldrip, if the Rathbuns were running a business, then Scientology is running a business as well, and the anti-SLAPP motion doesn’t apply.
You can’t have it both ways, she explained. This is either a business dispute — and anti-SLAPP does not apply to business disputes — or the Rathbuns’ privacy was invaded.
Is it a business dispute, or did you invade their privacy? Which is it? she asked.
Swift says the Scientology side looked stunned, and the judge really sat up and took notice.
Reports from Nick coming soon…
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7:38 pm
Nick Rogers tells us that late in the day, the court heard from attorneys for some of the defendants who have been pretty quiet so far.
First up was O. Paul Dunagan, who represents Dallas private eye Monty Drake. (Marty Rathbun and Mike Rinder have said that Drake has been used by the church for operations in Texas for many years.)
Dunagan complained to the judge that no one had showed any real evidence about Monty Drake so far.
And Dunagan apparently wanted to make explain what a private investigator like Monty Drake does. No one has an expectation of privacy, he explained, if that person is outside, or if that person is doing naked jumping jacks in front of a window inside their house.
Dunagan admitted that he was using hyperbole, but Nick he couldn’t help wonder if he was preparing the judge for evidence turning up that pictures of Marty and Monique inside their house turned up in evidence.
Nick said the court also heard from Stephanie Bascon, who is representing Scientology private eye Dave Lubow.
She spent some time trashing Bert Leahy, the videographer who had left the Squirrel Busters after a few days, and blew the whistle on what they were actually doing — trying to make life for the Rathbuns “a living hell.” That’s what Bert says were the instructions given them by Lubow.
But Bascon tried to impeach Leahy’s credibility, saying that at one point Leahy had called Lubow, asking him for ,000 to keep his mouth shut, and that he was running down Marty Rathbun in the same call.
Bascon said it showed that Leahy wasn’t a reliable witness.
We told Nick we weren’t sure why either of these objections by Dunagan and Bascon had much to do with the matter at hand — Scientology’s anti-SLAPP motion.
And Waldrip, Nick said, responded to Bascon’s assertions about Leahy by asking, Can’t the court look at the motive of the surveillance and its end result?
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7:48 pm
Nick said the court also heard from Jonathan Hull, who is representing both Ed Bryan (one of the Squirrel Busters) and Steven Gregory Sloat, the former race car driver who admitted he was hired to spy on the Rathbuns in their new home in Bulverde, Texas.
But Nick says Hull asked why Steve is being sued, and said that unlike Dave Lubow or Monty Drake (“And I’m not picking on them,” he said), Sloat had very little involvement.
Ed Bryan, meanwhile, was also just along for the ride, in this case in a golf cart.
Oh, pity the poor would-be spies and righteous religious warriors who got into bed with David Miscavige and the Church of Scientology. Woe is them.
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7:56 pm
Nick said that Leslie Hyman had several more amazing moments than the one J. Swift told us about earlier.
At one point, she objected to the way Scientology was characterizing Monique’s arguments about the Squirrel Busters.
Waldrip asked, are you complaining about the videotaping or aren’t you?
We are, Hyman said, as part of the whole campaign, the whole picture. “What they did was so outrageous, it demands remedy,” she said.
And then, she really went in for the kill in regards to the trademarks argument that Scientology is continually pushing.
Nick says she told the judge, “If I’m investigating you about trademarks, I don’t have to talk to your wife about your mother.”
Whoa. That was a reference to private investigators trying to upset Monique by telling her about Marty’s mother, who suffered from mental illness and ultimately killed herself. Monique says they were clearly trying to intimidate her about her own husband, trying to convince her that he was unstable.
“If it’s a trademark question, why do I have to go talk to your family members about your husband?” Hyman asked.
Monique has said that Dave Lubow would show up to her father’s house with a binder of information about Marty, again to try and upset her family about the man Monique married.
It seemed a devastating argument, Nick says.
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7:59 pm
Nick tells us that Judge Waldrip told both sides that the hearing on the anti-SLAPP motion is technically still open until February 14, and he’ll be accepting additional objections and response until that day.
But it sounds like most of what needed to get done did get done today. Ray Jeffrey had told us that Waldrip will have an additional 30 days to rule after the hearing is finished.
We’ll check with him later for further details, but we’re probably done for today. Check back with us in the morning for any updates.
Thanks again to our correspondents, Nick Rogers and Jeff Augustine. If we get a video from Mike Bennitt, we’ll add it here.
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